The Federal Bureau of Investigation welcomed the recent
opportunity provided by the Department of Justice Office of the
Inspector General (OIG) to review the OIGs January 21, 1997
draft report concerning certain units within the FBIs
Laboratory Division. We hope that the comments provided in this
document assist the OIG in reaching its final conclusions, and in
issuing its final report on these matters.

The FBIs primary focus during this period of review was
to provide the OIG with comments concerning the accuracy of the
initial findings in the draft report. In furtherance of that
objective, the FBI enlisted the assistance of its Office of the
General Counsel and Laboratory Division. Due to the gravity of
the concerns raised in the draft, the FBI also reviewed the
OIGs initial findings in contemplation of taking swift
action to ensure that any problems that have been identified in
the Laboratory will never recur.

The FBI takes full responsibility for the failings which have
been identified within its Laboratory. Those that have not
already been addressed will be addressed promptly. In that
regard, the FBI remains grateful for the OIGs assistance in
identifying, isolating, and remedying these matters.

The FBIs commitment to holding its Laboratory to the
highest possible standards is reflected in the Laboratorys
history. Since its 1932 inception, the FBI Laboratory has
consistently strived to enhance its services to the law
enforcement and criminal justice communities. Today, we believe
the FBI Laboratory remains the best forensic laboratory in the
world. The Laboratory is preeminent in a wide range of areas,
including the examination and analysis of chemical-toxicological
evidence, DNA, fingerprints, explosives, firearms, toolmarks,
paints, polymers, metals, hairs and fibers, shoe prints, tire
treads, photographic images, and documents. The Laboratory also
is a leader in psycholinguistic analysis, polygraphy, computer
analysis, and racketeering records analysis.

The FBI Laboratory recognizes the need to provide prompt,
accurate, and thorough responses to the thousands of requests it
receives annually from international, federal, state and local
law enforcement organizations. The FBI Laboratory also is
committed to developing innovative uses of technology to
facilitate investigations. In fact, over the past several years
alone, the FBI Laboratory has been instrumental in critical
forensic science developments ranging from validated new uses of
capillary zone electrophoresis tests to analyze inorganic
materials found in explosives residues, to the recent development
(mentioned in the OIGs draft report) of analytical methods
for determining the presence of the preservative EDTA in dried
bloodstains to provide probative information when allegations of
evidence tampering have been made in criminal cases. The FBI
Laboratory routinely employs the most sophisticated state of the
art technology, and has made enormous contributions to the field
of forensic science.

Like other laboratories around the world, the FBI Laboratory
continues to evolve, both in the use of the latest available
scientific methods and in monitoring and refining its quality
assurance programs. With respect to quality assurance, the FBI
Laboratory operates under the guidance of detailed protocols, and
its personnel are thoroughly trained and supervised. We have not,
however, always lived up to our own or the publics
expectations of perfection.

At various times over an approximate eight year period, one of
the FBI Laboratorys scientists, Frederic W. Whitehurst,
raised concerns about individuals and practices within three of
the Laboratorys 23 units. Whitehursts concerns took
the form of highly charged accusations against his co-workers,
including allegations of perjury and suppressing, fabricating,
and tampering with evidence. Many of Whitehursts charges
were made in connection with cases he did not work on, and about
trial testimony he had not personally reviewed. He placed blame
with equal force and certainty regardless of whether he had any
basis to level such charges. As the OIG would later find,
Whitehurst "often accused others of wrongdoing when he did
not know the pertinent facts, he has used hyperbole and
incendiary language that blurs the distinction between facts and
his own speculation, and he has otherwise displayed a serious
lack of judgment." [Part Five at 33.]

The sheer volume of accusations made by Whitehurst, the
vitriol and certainty with which they were made, and the fact
that most of his accusations  both facially and after
review  lacked any foundation, contributed to the
unfortunate consequence that the FBI failed to recognize the
merit in some of his charges.

Whitehurst then decided to raise his concerns with the OIG
through a series of letters which, according to the OIG, numbered
in the hundreds. Whitehurst did not provide copies of those
letters to the FBI. The OIG assembled the resources needed to
investigate all of Whitehursts allegations, employing a
team of at least fourteen persons, including five worldwide
scientific experts and a separate team of prosecutors and
investigators. After a sixteen-month inspection, the OIG issued
its January 21, 1997 draft report.

As reflected in the draft, the OIG found the vast majority of
Whitehursts allegations to be baseless. Included in the
OIGs findings is a rejection of each of Whitehursts
charges of perjury, evidence tampering, evidence fabrication, and
failure to report exculpatory evidence. Similarly, the report
reflects that Whitehursts broad allegations of systemic
contamination, improper evidence handling and scientific
analysis, and FBI retaliation against him, also lacked
foundation. As concerns Whitehurst himself, the OIG found that
"Whitehurst appears to lack the judgment and common sense
necessary for a forensic examiner," and that Whitehurst
could not effectively function within the FBI Laboratory. The OIG
recommended that "the FBI consider what role, if any, he can
usefully serve in other components of the FBI."

Significantly, however, the OIG also determined that a number
of Whitehursts charges had some merit  findings which
the FBI takes extremely seriously. Most important in this regard
are the OIGs particular findings as to one FBI
explosives-examiner and one FBI scientist-examiner who had
performed unacceptably in connection with a total of three
criminal cases. These performance problems relate to the accuracy
of the examiners opinions and conclusions, and the
reliability of the basis for those opinions and conclusions. The
gravity of the concern over the performance of one of these
employees is magnified because the cases to which he was assigned
included two that are particularly significant: the bombing of
the World Trade Center in New York City and the bombing of the
Alfred P. Murrah Federal Building in Oklahoma City. The FBI is
relieved to learn from federal prosecutors assigned to these
cases, who have reviewed the evidence and the OIGs initial
findings, that the employees performance errors did not
compromise any defendants right to a fair trial.
Nonetheless, after reviewing these matters, the FBI agrees with
the OIGs overall assessment that these two employees did
not adequately perform their duties and that their supervisors
inadequately reviewed their work. These failures will not be
excused, nor will the FBI permit these failures to recur.

B. The FBI's Commitment to Quality

Within the draft report, the OIG provided the FBI with a
number of detailed recommendations to enhance the
Laboratorys quality. With few exceptions, the FBI fully
concurs in these recommendations and has already implemented some
of them. Moreover, the FBI has adopted other recent measures to
improve the Laboratory Division, many of which exceed those
recommended by the OIG. The FBI wants to assure not only the OIG,
but the greater public, that it has no intention of
"covering up" its problems. As is evidenced by our full
cooperation in the OIGs investigation, we are committed to
excellence, and will always pursue it.

The following list outlines the OIGs most significant
recommendations to improve the Laboratory and describes a number
of actions that the FBI has already taken to implement those
recommendations:

(1) External Review: The FBI agrees that the
Laboratory should undergo additional periodic review, and
requests that the OIG conduct progress reviews on the
implementation of its recommendations every six months, until
both the OIG and the FBI are fully satisfied that the Laboratory
has made the changes necessary to address the issues raised by
this investigation. In addition, the Laboratory is pursuing an
outreach effort to establish external peer review relationships
with other forensic laboratories in various disciplines. Most
importantly, the Laboratory will be subject to the intensive
external review and monitoring associated with acquiring and
maintaining accreditation by the American Society of Crime Lab
Directors/Laboratory Accreditation Board (ASCLD/LAB), as further
discussed below.

(2) Accreditation: The FBI agrees that the
Laboratory should pursue ASCLD/LAB accreditation at the earliest
possible time, and it has already begun to do so. ASCLD is
nationally recognized and respected, and the FBI is proud to have
been instrumental in the formation of that group. In preparation
for accreditation, the FBI Laboratory is currently undergoing
extensive internal audits of its operations and procedures. In
the Spring of 1997, upon the completion of the internal audits,
the Laboratory will have an external, pre-accreditation review
conducted by qualified inspectors from the National Forensic
Science Technical Center. The Laboratory anticipates that it will
complete its preparations in time to permit it to submit an
application for accreditation near the end of 1997.
ASCLD/LABs decision to accredit must be made within 12
months of the completion of its on-site inspection of the FBI
Laboratory, providing a target accreditation date near the end of
1998.

(3) Laboratory Restructuring: The FBI agrees
that the Laboratorys Explosives Unit should be restructured
to clarify its mission and to ensure that both supervisory
personnel and examiners have appropriate scientific and technical
training. Such a restructuring is already underway, and will
include merging the Explosives Unit with a portion of the
Materials Analysis Unit, in order to link two related scientific
areas.

(4) Resolution of Scientific Disagreement: The
FBI agrees with the need to establish clear guidance for its
examiners to follow when encountering disagreements over forensic
methods or the interpretation of results. To address that need,
the FBI recently distributed a communication to all Laboratory
personnel describing in detail the procedures to be followed in
the event a scientific dispute arises. That procedure, which will
ensure that such disputes are satisfactorily resolved in
accordance with applicable scientific principles, will be
incorporated into the Laboratory's Quality Manual.

(5) Examiner Reports: The FBI agrees that,
rather than follow a procedure whereby a principal examiner
assembles a report based on dictation from other examiners, each
examiner who analyzes evidence should prepare and sign a separate
report. The Laboratory implemented this requirement before the
OIG provided the FBI with its draft report. The FBI now requires
that, prior to release, reports be reviewed by a unit chief or
other qualified examiner for compliance with all applicable
procedures. The FBI also has adopted an internal audit program,
pursuant to which examiner reports will be subject to annual
audits by the Quality Assurance Unit (QAU) to confirm that all
necessary documents are included in the case file. Finally, the
FBI is establishing a separate audit group in the QAU which will
review a representative sample of closed cases to ensure that all
aspects of the Quality Assurance Plan are strictly followed.

(6) Examiner Training: In addition to the
specialized examiner training already provided for each unit of
the Laboratory, the FBI agrees that the Laboratory should
implement a uniform curriculum for examiner training that
addresses common issues such as case documentation, report
preparation, examiner ethics and testimony. In order to meet
thatobjective, the Laboratory is refining its current mandatory
core curriculum for new examiner qualification, which addresses
issues common to all forensic disciplines.

C. The FBI's Comments on the Draft Report

Although this Executive Summary will not highlight the
FBIs review of the specific factual findings in the draft
report, the following is a summary of the FBIs comments as
to certain global aspects of the draft report, and as to a few
recommendations in the draft report, with which the FBI
disagrees.

(1) Implication that the Laboratory Has Not Already
Modified Procedures

In Part Two of the draft report, the OIG recognizes that a
number of changes in Laboratory practices have already occurred
due to the Laboratorys decision over the last several years
to implement a formal quality assurance plan and to seek
accreditation by ASCLD/LAB. The OIG then notes that "[i]n
evaluating Whitehursts accusations that others have
violated Laboratory policies or otherwise acted unprofessionally,
it is important to recognize that the Laboratorys practices
related to quality assurance have evolved significantly."
[Part Two at 4-5.]

Despite this acknowledgment that Laboratory policies and
procedures have been modified significantly since many of the
events at issue occurred, the draft report repeatedly comments
that particular cases demonstrate the need for a change in those
policies and procedures without also noting that changes have
already been made. [See , e.g. , Part Three, Section A at 35
(stating that problems in the Rudolph matter might have been
prevented if the Laboratory had established a formal quality
control program which provided guidelines for case documentation,
adequate case review and the use of properly validated protocols,
which the Laboratory has already done); Part Three, Section B at
29 (stating that the Laboratory would benefit from, among other
things, clearer guidance as to the scope of principal examiner
testimony regarding work performed by AEs, improved record
retention and retrieval systems, written and validated protocols
for standardized procedures, and file review to ensure
conclusions are supported by appropriate analysis and data,
changes that the FBI has already implemented); Part Three,
Section C at 64 (Williams  testimony in World Trade Center
case exemplifies the need for many of the Laboratory improvements
described in Part Six, many of which have already been
implemented); Part Three, Section E at 39 (Hahn  s conduct
exemplifies the need for additional training of examiners
regarding courtroom testimony, which is already being undertaken
by the Laboratory); Part Three, Section H1 at 14 (noting that the
Yu Kikumura case illustrates the desirability of clearer
guidelines for and effective monitoring of examiner testimony,
policies that have been implemented by the Laboratory).] We
believe that the sheer number of those comments, made throughout
the draft report, undermine the general statement quoted above,
and may lead to the incorrect impression that many, if not most,
of these issues have not been considered by the FBI at all. In
fact, as discussed in detail in Section III of the FBIs
response, the FBI has already implemented many of the OIGs
recommendations and, in some instances, has surpassed those
recommendations in adoptingpolicies and procedures that will
ensure that the high-quality work performed by the Laboratory
continues.

As stated earlier, the FBI greatly appreciates the OIGs
recommendations for improving the Laboratory. However, we believe
that, by including those recommendations in the analyses of
numerous individual cases as well as Parts Six and Seven of the
draft report, the OIG fails to give sufficient recognition to the
changes that have already been made. We therefore request that,
to the extent sections of the draft report other than Parts Six
and Seven discuss the need to improve Laboratory practices, those
discussions be omitted.

(2) Failure to Always Recognize Courtroom Dynamics

While we generally agree with the draft report's
recommendations on guidelines for examiner testimony, we are
concerned that many of the OIG's comments in the body of the
report regarding such testimony fail both to recognize certain
courtroom dynamics and to acknowledge protocols that already
exist within the FBI.

As noted in the draft report, one cannot expect an
examiners work or testimony to have been perfect in every
case if it is subjected to a detailed, after-the-fact analysis
like that employed in our investigation. Laboratory examiners
work under time constraints and other pressures; scientists can
legitimately differ in their interpretation of data; and
knowledge and practices in forensic disciplines evolve over time.
We also reviewed, with the benefit of hindsight, certain
testimony given under courtroom examination, where a witness
generally cannot reflect at length on the questions and answers.
[Part Two at 1-2.]

We agree with this prefatory remark, but believe that its
impact and caution have been lost along the way.

A trial is an adversarial process with witnesses subject to
both direct and cross-examination by parties seeking to elicit
testimony which supports their respective theories of the case.
The basic testimonial role of a Laboratory examiner in this
process is the same as that of any expert witness in that, as
reflected in the Federal Rules of Evidence, the expert examiner
is present at trial to assist the trier of fact to understand the
evidence or to determine a fact in issue.

We agree that in order to maintain their objectivity and
credibility Laboratory examiners must ensure that their responses
on direct and cross-examination are not overstated or misleading
and are supported by facts and data of the type reasonably relied
upon by experts in the field. And, of course, examiners must
testify accurately. Nevertheless, the draft reports
approach towards this subject requires greater balance. It must
be acknowledged that the examiner-witness is seeking to explain
complicated scientific data and material to the average layperson
(non-scientist) to assist the jury in making a determination
regarding the ultimate issues in the case. Many of the OIG's
comments that call for greater accuracy and precision in examiner
testimony fail to recognize the role of the expert at trial as a
translator of technical information and a facilitator of jury
comprehension of scientific material. A hyper-technical
discussion of scientific issues will not aid the trier of fact.
Therefore, expert witnesses are constantly attempting to strike a
proper balance between furnishing technical information and
having their testimony comprehended by the average juror.

We believe that the OIG's findings that certain examiners
testified outside the scope of their expertise fail to appreciate
the role of the expert in the criminal process. The Federal Rules
note that the fields of knowledge which may be drawn upon for
expert testimony are not limited merely to the
"scientific" and "technical" but extend to
all "specialized" knowledge. Under the Federal Rules,
the expert is viewed not in a narrow sense, but as a person
qualified by "knowledge, skill, experience, training or
education." Many of the OIG's findings fail to take into
account the existing legal standard for expert testimony and, in
turn, the OIG has placed inappropriately narrow constraints on
the scope of an examiner's expertise. These findings often fail
to acknowledge the wider boundaries of expert testimony
envisioned by the Federal Rules and fail to account for the
knowledge, training, and experience that our Laboratory examiners
have developed during their careers. In addition, although not
noted in the draft report, whether a witness is qualified to
testify as an expert in particular areas is itself the subject of
voir dire, and the courts oversight and express rulings. On
some occasions, courts have requested that our examiners provide
"summary testimony," while recognizing and explaining
to the jury the limits of their expertise.

Moreover, although we agree with the OIG's finding that
greater guidance is needed in the area of examiner testimony, the
draft report suggests on numerous occasions that examiners were
not previously instructed to testify accurately and within their
expertise. The FBI has always recognized that the credibility of
its Laboratory examiners relies not only on their performing
objective forensic examinations, but in clearly and impartially
testifying to their conclusions based on "facts or data
relied upon by experts in the particular field in forming
opinions or inferences upon the subject." To that end, FBI
examiners have consistently been directed to provide
straightforward, clear and objective testimony within the
boundaries of their respective expertise. In accordance with
these fundamental principles of expert testimony, the FBI has
long held moot courts as a part of the Laboratory's qualification
process to rigorously test the clarity, precision, logic and
objectivity of a new examiner's testimony. To reinforce these
principles in all of its examiners, the Laboratoryhas adopted a
Courtroom Testimony Policy which essentially codifies, and is
sometimes more restrictive than, the guidelines for examiner
testimony suggested by the OIG. The Laboratory will continue to
emphasize the importance of clarity and accuracy in examiner
testimony to ensure that the highest standards for expert
testimony are met. It is improper, however, to suggest (as the
draft report does) that there has been a complete absence of
these standards, and that requiring accurate testimony would be
new to the FBI.

(3) Discussions About Prosecutorial Bias

The FBI strongly objects to the draft reports
suggestion, however limited, that one or more of the FBI
Laboratorys examiners may have intentionally biased their
findings, reports, or testimony in order to favor the
prosecution. [See, e.g. , Part Three, Sections A at 10, G at 1,
and E at 39. ] It is paramount to the Laboratorys mission
that its work be conducted with complete objectivity. To charge
that the Laboratory acted otherwise is an extremely serious
allegation, and one that lacks support.

A clear distinction must be made between a Laboratory examiner
who develops his or her own expert opinion, based on all the
available evidence, and somebody who provides "biased"
testimony. Although an examiners theory might be consistent
with the prosecutions theory, to suggest that any of the
Laboratorys examiners skewed his or her opinions to favor
the prosecution is without basis. The draft report omits the fact
that examiners usually reach their expert opinions as to certain
findings well before the governments case is brought.
Moreover, the FBI Laboratory routinely produces forensic evidence
that exonerates suspects and which results in decisions by
prosecutors to decline prosecutions. In fact, our examiners are
frequently called upon to testify on behalf of defendants.

(4) Subjective Commentary

In the context of its review of examiner conclusions, the OIG
repeatedly expresses "serious concern" and indicates
that it is "deeply troubled" by certain findings. We
take issue with the inclusion of such commentary and ask that
these references be deleted. We believe that the fact-finding
objective of the OIG is compromised by the insertion of such
subjective opinion.

(5) Conclusions About the Proper Role of Explosives Unit
Examiners

The draft report recommends that the investigative and crime
scene management functions of the Explosives Unit (EU) be
transferred out of the Scientific Analysis Section. This
recommendation is based upon a view of the role of the EU
examiner with which the FBI respectfully disagrees. Therefore, we
are not inclined to follow this particular recommendation.

Bomb scene investigations are unique. Observable damage to the
post-incident site often has significant evidentiary value,
sometimes providing clues to help solve these crimes. The
knowledge of specific explosives devices and their effects on
particular materials may be significant in searching for
bomb-related evidence. Some of this evidence might, for example,
include the rearrangement of the normal contents of a building or
structure, and offer clues as to the explosive force of the
device involved. It is not unusual for an explosives examiner,
based on years of experience (which cannot be obtained in a
classroom), to help develop the most systematic approach to the
collection of explosives evidence at a crime scene. In addition,
firsthand observations by EU examiners at crime scenes are among
the facts and data upon which they may properly base an expert
opinion.

Although the OIG notes that there is a trend toward
increasingly technical and sophisticated techniques for forensic
bombing examinations, the FBI, as well as the Forensic Explosives
Laboratory in Great Britain, recommends that forensic explosives
scientists be present at the scenes of certain explosions. The
FBI believes that precluding EU examiners from an investigative
role would eliminate a potential basis upon which they could
learn about the workings and effect of explosive devises and an
opportunity for them to share their knowledge to help apprehend
those involved in these awful crimes. As a result of these
considerations, the FBI is not inclined to transfer the EU's
investigative and crime scene management functions to the
Evidence Response Team (ERT) Unit. Rather than require completely
different personnel to investigate explosive cases and oversee
the collection of evidence, the FBI plans to continue, as it has
long advised other forensic laboratories, the practice of having
its experienced explosives examiners participate in post-incident
examinations.